Online selling and contracting: An overview of EU rules

In the second of our series of articles considering the EU’s limited harmonisation of the laws regulating the activities of businesses using the Internet, we look at the rules governing contracting and selling online. We consider the circumstances in which three key EU directives apply, the rights, under these directives, of consumers who contract online and the effect of electronic signatures as used for online contracting.     

The Acquired Rights Directive and Compulsory Competitive Tendering in the UK: An Economic Perspective

This paper considers neglected economic aspects of the conflict between the desire of EU Member States to extend competitive tendering in their public sectors and EC law which guarantees terms and conditions of employment for workers who are transferred to a new employer. Whilst the Acquired Rights Directive explicitly contains reference to economic considerations, the debate concerning its revision has largely neglected economic analysis. Concentrating upon UK experience, we show how differences in the interpretation of the term economic in the Directive can give rise to a clash between principles of economic and legal decision-making.     

欧盟版权指令第15条之评价与反思:以超链接规制为视角

欧盟现有法律对于超链接的侵权管制过于严格,这种做法没有平衡公共利益和著作权人的利益,造成了对著作权的过度保护.虽然最终通过的《数字化单一市场著作权指令》第15条规定新闻出版媒体的邻接权规则不适用于超链接行为,但是这并未从根本上解决对超链接的著作权规制过严问题.为了促进互联网上信息的自由流通以及用户的表达自由,法官应当对超链接提供者与网络平台的侵权责任进行区分,并且仅在超链接导致侵权结果时对链接提供者进行追责.     

Electronic databases: Protecting your investment – An analysis of the legal rights in electronic databases under UK law

Electronic databases are an important part of the information economy. They are now one of the key platforms for the distribution of information and other contents. The European Court of Justice, in November 2004, gave its first rulings on the scope of database right, introduced by Directive 96/9/EC on the legal protection of databases. These rulings significantly curtail the scope of that right, and limit the protection afforded to database producers under that Directive. The UK courts, in January of last year, handed down a judgment which has important implications for the copyright protection afforded database structures and to “look and feel” elements of database application software, and the scope of Section 50D of the Copyright, Designs and Patents Act 1988 (which sets out certain statutory permitted acts in relation to database use). This article looks at the implications of these judgments, it analyses some of the key legal rights that can apply to electronic databases, and the increased importance that rights of confidentiality and contract are likely to have on the commercialisation of electronic databases in light of these rulings.     

An analysis to the foundation of rule of law in Civil Society

Civil Society refers to the civil organizations and activity space existing in society but outside the control scope of a government, and it is a society formed by citizens and the totality of citizen communication. Civil Society has a close connection with the law as the law just derives from regulations of Civil Society and acquires political form through a country. Civil Society is the social cultural foundation of laws and the rational regulation of Civil Society is the foundation on which the legal order is established.     

Allocating responsibility among controllers,processors, and “everything in between”: the definition of actors and roles in Directive 95/46/EC

In Opinion 1/2010, the Article 29 Data Protection Working Party has provided additional guidance concerning the concepts of ‘controller’ and ‘processor’ contained in Directive 95/46/EC. This guidance aims to assist practitioners in their determination of whether an entity is acting as a controller or as a processor towards a particular data processing operation. Despite the fact that this opinion is informative, the existing framework still appears to leave room for a considerable amount of legal uncertainty. This uncertainty is attributable in part to the nature of the existing concepts, but also (and perhaps to a larger extent) to their apparent misalignment with current processing realities. In this paper, the author seeks to articulate why the existing concepts often remain difficult to apply in practice, in order to enable a constructive reflection on how these issues might be addressed in the future.     

Law,ideology and social change: An analysis of the role of law in the construction of corporate crime

This paper explores recent efforts to theorize the potential of law as an agency for progressive social change in the context of the debate over corporate crime. Drawing on feminist experience with criminal law reform in the area of domestic violence, the author argues that the strategy of criminalizing corporate violations needs to be problematized, and that attention should also be focussed on exploring other avenues for progressive legal and political struggles aimed at the control of corporate crime.     

Regulating electronic identity in the European Union: An analysis of the Lisbon Treaty’s competences and legal basis for eID

This paper discusses the feasibility of EU legal action in the field of electronic identity (eID) within the new distribution of legal competences and the provision of novel legal basis engendered by the Treaty of Lisbon. The article attempts to find a ‘legal anchor’ to the idea of a pan-European electronic identity within EU law, looking at the issues of competences and legal basis. After examining various different areas of competence and the most feasible (and probable) candidates for a legal basis supporting an EU legal framework for eID, the paper argues that the latter should be found in the combination of Article 16 TFEU (concerning the right to the protection of personal data) with Article 3 TUE, and Articles 26 and 114 TFEU (concerning the establishment and functioning of the Internal Market), which also constitute the area of competence where an eID legal initiative can be pursued.     

职场性骚扰雇主责任的法经济学分析

职场性骚扰雇主责任就是雇主要为其雇员的性骚扰行为负责任。通过法经济学的分析,对于监督管理者雇员实施的交换型性骚扰雇主承担严格责任;对于敌意环境型性骚扰雇主承担过错责任。这对预防与抑制职场性骚扰更有效率,同时,可以使社会成本降到最低。     

How to build European private law: an economic analysis of the lawmaking and harmonization dimensions in European private law

In the process of building a European Private Law, the lawmaking and harmonization dimensions??the modes of harmonization and even more, the scope and reach of the harmonizing effect of the European rules- appear as crucial issues. We show how the harmonization strategy is as important a question as whether we should have European Private Law at all. We present an economic discussion of the different modes of harmonizing Private Law in the abstract, and how they are likely to differently affect outcomes. We also present in informal terms a simple economic model of how to build optimal harmonized rules and standards in a setting of pre-existing separate and diverse national ones, and we systematically explore how the different harmonization regimes (maximum harmonization, minimum harmonization, and pure co-existence of harmonized and national standards) affect the outcomes of the harmonization process.     

The legal implications of student use of social networking sites in the UK and US: current concerns and lessons for the future

This paper provides a comparative snapshot of the current state of the law in the US and UK with respect to potential liability of university and college students for use (and misuse) of social networking sites. It reviews the limited case law on this topic, highlights the differences in the two nations’ laws of defamation and the various possible legal claims available to individuals allegedly harmed by postings on these social networking sites, and concludes that neither country currently offers a satisfactory legal or quasi-legal model for resolving these disputes.     

Divergent Expectations and Experience: An Empirical Study of the Use Children's Contact Services in Australia

In this article, an overview of the key findings from the Children'sContact Services Project is presented. Children's Contact Services(CCSs) assist separated parents to manage contact arrangementswith their children through the provision of supervised visitationand changeover services. The aims of this project were to investigatethe use of CCSs in Australia by referring agencies (eg. courtsand legal practitioners), and clients of contact services (parentsand children), and to consider the views and expectations ofthese key stakeholders regarding those usages. This approachwas based on the assumption that there are currently conflictingusages and expectations of contact services, and that this situationcould compromise children's well-being. The findings were derivedfrom two studies. The first study involved conducting 142 in-depthinterviews with representatives from the Australian Government,the courts and legal practitioners who referred families toCCSs, CCS staff and management, as well as parents and childrenwho used CCSs. The second study comprised a quantitative analysisof client data collected by CCS staff from 396 families whohad used a government funded CCS in August 2003. The findingsdemonstrated that in Australia, CCSs provided an invaluableservice that was viewed positively by government, referral agents,CCS staff and management, and by the parents and children whoused them. Despite this generally positive view, there wereconflicting expectations of CCSs that, under certain circumstances,compromised children's well-being and that of their parents,particularly their residence mothers.     

Privacy,stigma and public protection: A socio-legal analysis of criminality information practices in the UK

Criminality information practices involve public authorities in the UK (and elsewhere) gathering, retaining and sharing information that connects with an identifiable individual; all with the ostensible aim of upholding and improving standards of public protection. This piece first charts the landscape of contemporary criminality information practices in the UK today. The article then examines recent legal emphases and policy directions for public protection networks. Consideration is then given in the piece to privacy rights and values and the difficulties in providing an exact typology and grounding for these. The piece then outlines a suggested framework for correct legal regulation, as well as a through commentary on the work done by Catherine Bellamy et al. to empirically determine the extent to which public protection information sharing can in fact occur in correct adherence to legal regulation. A socio-legal analysis is undertaken of the nature of public protection networks as variants on Goffman's performance teams within a dramaturgical routine that foregrounds stigmatisation of perceived ‘risky’ individuals as an aspect of that routine. This piece also explores the processes of institutional isomorphism as a reaction to shifting policy directions and legal doctrines, acting as a driving force towards a hierarchical performance of criminality information practices by public protection networks. Three conclusions are offered up for consideration: firstly, that the growing complexity of the law and regulation relating to criminality information practices might improve privacy values in the criminal justice system and help to add precision to necessary processes of stigmatisation in relation to the aim of public protection. Secondly, that these shifts in the law still need ongoing revisions, in order that a hierarchical approach to criminality information practices can be arrived at over time. Thirdly, that if the permanency of potential stigmatisation through the indefinite retention of criminality information cannot change, due to the competing pressure on the criminal justice system from public protection duties, then consultation with ‘risky’ individuals where practicable, before criminality information connected to them is shared across public protection networks becomes essential as a privacy-enhancing value and practice.     

论核心卡特尔中的宽恕制度及我国《反垄断法》对其规制和完善

核心卡特尔通过相同的定价、一致的行动、固定的份额来获取高额的利润,给竞争带来重大的危害,但是其隐蔽性强,难以为执法机关所侦破.宽恕制度,通过豁免卡特尔协议成员的方式以鼓励其对卡特尔协议的披露,成为西方国家打击卡特尔的重要武器.我国<反垄断法>虽对宽恕制度做了规制,但尚且不足.仍待完善.